PART 5 - Petition may freeze election ordinance

Pete Graff, right, presents anti-districting petitions to Tehachapi Administrative Manager Ashley Whitmore at City Hall, 4:35 p.m. , Tues. Jan. 2, 2018. Whitmore and Administrative Assistant Tori Marsh counted the signatures in a "raw review" to make sure there were enough to meet the required 10 percent of registered voters. The city has 30 days to validate each signature as a resident and registered voter.

It ain't over yet! City Council could face tough decision

Signed petition forms filed Tuesday, Jan. 2, 2018 at Tehachapi City Hall may trigger suspension of the City Council's ordinance that jettisoned the at-large election system in favor of five single-member council districts.

Former Tehachapi police officer Pete Graff filed the petitions on behalf of residents who oppose the City Council's 5-0 vote Dec. 4, 2017 to approve the election district ordinance. The opponents assert that voters should have been able to adopt or reject the district-based election ordinance at the ballot box. The petition asks that the ordinance be reconsidered or repealed or that it be submitted to a vote of the people at next general election.

During door-to-door canvassing over the holiday, Graff's team collected 565 signatures. He needed 436 (ten percent of the registered voters in the city) to qualify for certification and presentation to the City Council.

As Graff waited, Administrative Manager/Deputy City Clerk Ashley Whitmore and Administrative Assistant Victoria Marsh inspected the petitions and counted the signatures in a "prima facie" or "raw" review. All appeared to be in order, and the city accepted the documents. Within 30 days, Whitmore will check each signature to verify residence and voter registration.

"If the petition is sufficient, the ordinance is suspended," attorney Youstina Aziz of the firm Richards, Watson and Gershon, who is counsel to the city in the districting matter, told Forde Files. With the petition submitted just the day before, she said there was not enough information yet to properly analyze its legal impact.

The City Council must accept a certified petition, Aziz said, and the councilmembers would be obliged to reconsider the ordinance.

At that time Aziz said, "The Council has to make a decision."

The options for the Council, she said, are to place a referendum on the November ballot or to repeal the ordinance.

Either option would be expensive and would create difficulties for the city, which was faced with a compressed time span to consider the matter and to organize public hearings. Opponents of the ordinance say there was not enough time for the public to review the issue and to study the maps. Graff said that while canvassing for signatures, no one he spoke to was acquainted with the districting issue [They should have read The Loop. See previous stories at theloopnewspaper.com under Forde Files].

"We had four public hearings," TehachapiCity ManagerGreg Garrett said to Forde Files. "None of the people circulating the petition were engaged in the public process."

Graff said many people followed the hearings and discussions via the internet. He said people tend to be intimidated in Council meetings and are reluctant to come forward.

"All five City Council members approved the districting," Garrett said. "There was the introduction, maps, the web site. I am not sure the opponents fully understand. This [possible referendum] is going to cost citizens of Tehachapi real dollars."

The City Council passed the district-based election ordinance under threat of a lawsuit if the city failed to act within 90 days after receiving a letter from Malibu attorney Kevin Shenkman, who asserted the city's at-large system dilutes minority voting rights.

The much-amended California Civil Rights Voting Act (2001) gives the attorney the right to challenge any jurisdiction that uses the at-large system as unfair to minority voters and to collect $30,000 for the trouble. Shenkman said he has a plaintiff who is a resident of Tehachapi standing by in the event litigation ensues.

In an at-large voting system, each voter can vote for anyone on the ballot. Under the district-based system, each voter can vote for one candidate who resides in and represents the voter's district.

California state law does not mandate the creation of districts, but the threshold for proving minority vote dilution is low and ephemeral, so fighting a plaintiff is difficult. Cities that have fought the demand for districts in court, so far, have lost, and spent millions of dollars doing so.

According to attorney Shenkman, only the City Council has the authority to decide the city's election system, and the voters of Tehachapi have no say in the decision. The petition will not put the ordinance on hold, he asserted.

"It does not [suspend the ordinance]," Shenkman said to Forde Files in an email on Jan. 3. "The legislature explicitly delegated the authority to adopt district elections to city councils, even without a vote of the electorate. Therefore, preventing a city council from converting the election system is not an appropriate subject for a referendum or initiative."

Pressed to cite a legal precedent, Shenkman referenced a 1988 case involving the city of Irvine and development fees for major thoroughfares. The plaintiffs were called The Committee of Seven Thousand.

The majority opinion argued that in matters of "statewide concern," decisions of a city council or board of supervisors prevail, and voters cannot launch a referendum to challenge such decisions. While parsing the meanings of "administrative" and "legislative" actions, the majority opinion stated: "We have concluded that the Legislature intended that the authority thus delegated be exercised by the local legislative bodies specifically and exclusively, thereby precluding use of the initiative and referendum in this limited area. We have also concluded that section 66484.3 does not violate the home rule or municipal initiative provisions of the state Constitution."

The dissenting opinion by Justice Monk (the only one of the seven Superior Court justices to dissent), on the other hand, defended the right of the electorate to be heard: "In my view, the majority have abdicated both their duty to guard the initiative power... and their responsibility to construe statutes, if possible, so as to harmonize with the Constitution."

The Tehachapi petition is an offshoot of a complex state-wide battle about voters' rights that is forging into uncharted legal territory and may end up in the Supreme Court of the United States.

Map by National Demographics Corp. for the city of Tehachapi. This is the final choice of the City Council. Councilmember Phil Smith lives in Dist. 1; Ken Hetge in Dist. 2; Ed Grimes in Dist. 3; Dennis Wahlstrom in Dist. 4 and Susan Wiggins in Dist. 5. Districts were not required to conform to the residences of the current council members, but to meet state guidelines.

One city in California – Poway, in San Diego County – is the center of a legal war that ultimately may settle the matter of dilution of minority votes. The case is Higginson v. California Attorney General Xavier Becerra and the City of Poway. Higginson, a private citizen and former mayor of the city, alleges that his voting rights have been compromised by the imposition of districts intended to protect others' voting rights. The Poway City Council, like that of Tehachapi, created election districts under threat of litigation. Other cities in California have joined the suit and filed amicus briefs supporting Higginson. Tehachapi's Garrett said that joining the suit with an amicus brief would expose the city to potential financial liability.

Garrett said it is best to let others play out the legal process.

"It's a multi-year process," he said. "Let's create districts so to keep us out of court. Let the courts, the attorneys and bigger cities figure it out. There is no reason for the city of Tehachapi to be leading that charge. It's potentially a waste of taxpayer money.

"The petition is not valid. If we put districting on the shelf, Shenkman will come in and sue."

If Higginson prevails in court, the city could revert to the at-large system.

Text of the petition:

REFERENDUM AGAINST AN ORDINANCE PASSED BY THE CITY COUNCIL

We, the undersigned, are duly registered and qualified voters of the City of Tehachapi, County of Kern, and constitute not less than 10 percent of the voters of the City of Tehachapi. We hereby protest the adoption of “Ordinance Number 17,” adopted by the City Council on December 4, 2017. We hereby request that “Ordinance Number 17” be reconsidered and repealed by the Tehachapi City Council or that it be submitted to a vote of the People of Tehachapi at the next regular election. The title and portion of the ordinance which is the subject of the referendum is set forth below.

ORDINANCE NO. 17 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF Tehachapi AMMENDING CHAPTER 2.10 OF THE Tehachapi MUNICIPAL CODE PROVIDING FOR THE ELECTION OF FIVE MEMBERS OF THE CITY COUNCIL BY DISTRICTS, ESTABLISHING THE BOUNDARIES AND IDENTIFICATION NUMBER OF EACH DISTRICT, AND ESTABLISHING THE ELECTION OF EACH DISTRICT.